LAW OFFICE OF AJAY K. ARORA
Empire State Building
350 Fifth Avenue, Suite 7716
New York, NY 10118
Phone: (212)268-3580
Fax: (212)268-3582
Email: info@h1b1.com
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LAW OFFICE OF AJAY K. ARORA |
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October, 2000
H-1B Bills Finally Signed by President and Become Law
President Clinton has signed S. 2045, the H-1B bill, and H.R. 5362, the fee increase bill, with the official date of enactment thereby being October 17, 2000. Since most of S. 2045's provisions do not have separate enacting clauses, those provisions become effective as of October 17. The only exceptions are Section 105, Portability of H-1B Status, which in subsection (b) states that the section will apply to "petitions filed before, on or after" October 17, 2000, and the H-1B Cap increase provisions of Section 102. (See below for explanations of these sections). The education and training fee, currently $500, will increase to $1000 two months after October 17, 2000, or by December 17, 2000. However, the new exceptions from the fee for elementary and secondary schools and nonprofits engaging in established curriculum-related clinical training of students at higher educational institutions are effective immediately.
FREQUENTLY ASKED QUESTIONS RE: AMERICAN COMPETITIVENESS IN THE TWENTY-FIRST CENTURY ACT (“AC 21”) & RELATED LEGISLATION
1. How many new visas are available? Will there be enough?
The quota is increased to 195,000 for each of fiscal years 2001, 2002, and 2003. (It then drops back down to 65,000 in fiscal 2004.) However, other provisions of the legislation should result in a noticeable number of H-1Bs not being counted toward the cap that had been counted in past years, resulting in an even greater effective increase in numbers. Those provisions include:
Exceptions from the quota for H-1Bs hired by institutions of higher learning, affiliated research organizations, nonprofit research organizations and governmental research organizations. This exception is estimated to account for between 6,000 and 10,000 H-1B visas per year.
- Exceptions from the quota for H-1Bs granted to physicians who have obtained a Conrad 20 waiver of the J-1 two-year home residence requirement.
Because the legislation increases the quotas for fiscal 1999 and 2000 to whatever was the number needed to meet those years’ demands, and treats petitions (filed up to September 1, 2000) as applicable to fiscal 2000, fiscal 2001 effectively “starts fresh” without any carry-over of petitions left over from last fiscal year. This provision will prevent more than 30,000 H-1B numbers from last year being charged to the current year’s quota.
2. What is the expected immediate effect of AC21 section 104’s provisional lifting of the per-country limits on employment-based India and China backlogs?
According to Charles Oppenheim (the individual at the Department of State responsible for preference cut-off dates), significant movements forward in cut-off dates are not likely to happen until December 2000 (but a cut-off date for the Philippines third preference is likely to be established at that time). He is uncertain as to whether and when there will cease to be any per-country backlogs, due to a lack of information from INS as to the number of cases caught in processing backlogs and as to expected processing times, but Mr. Oppenheim believes per-country cut-off dates will continue at least for the first two quarters of fiscal year 2001.
3. Under what circumstances can someone who is running out of his/her six years in H-1B status extend that status?
AC21 provides for such extensions in two circumstances: Under AC21 section 104(c), a beneficiary of an employment-based first, second or third preference petition who is eligible for permanent residence but for the application of the per-country limits may obtain extension of the H-1B status until the adjustment of status is decided. Under AC21 section 106(a), an H-1B status can be renewed in one-year increments for beneficiaries of any employment-based petition until adjustment processing is completed as long as 365 days or more have elapsed since the labor certification application or immigrant petition was filed.
4. How does one become eligible for the AC21 section 105 H-1B portability provisions?
This section allows a beneficiary of a petition to change employers to begin the new employment upon filing of the petition, rather than waiting for the petition to be approved. The petition must be nonfrivolous, and the beneficiary must be a nonimmigrant admitted to the U.S. (no particular nonimmigrant category is specified, but the individual must have been previously issued an H-1B visa or otherwise provided H-1B status), must not have been employed without authorization before the petition was filed, and must be in an unexpired period of stay when the petition is filed.
5. Can someone with a change of employer H-1B petition pending since before AC21’s passage change employers now under AC21 section 105, before the petition is approved?
Yes. The AC21 section 105 H-1B portability provision applies to petitions filed “before, on, or after” the date of enactment.
6. Is any provision made for continuity of H-1B validity in corporate restructuring situations?
Yes. A separate measure, the Visa Waiver Permanent Program Act, included a provision that an amended H-1B petition is not required where a new corporate entity succeeds to the interests and obligations of the original employer, and where the terms and conditions of employment remain the same. Note that, as of this writing, the President has not yet signed this measure, but he is expected to do so.
7. Has the H-1B “training fee” changed?
Yes, in a separate piece of legislation (H.R. 5362), the amount of the fee has been increased to $1,000 and the exemptions from the fee have been expanded to include primary and secondary schools and nonprofits engaged in curriculum-related clinical training of students registered at an institution of higher education. The fee increase is effective two months after enactment, but the new exemptions take effect immediately.
H-1B FEE INCREASE PASSES CONGRESS
The Senate passed a bill increasing the H-1B education and training fee to $1000. The House passed the same bill on October 6. Along with the fee increase, the measure broadens the categories of employers who are exempt from the fee to include elementary and secondary schools and "a nonprofit entity which engages in established curriculum-related clinical training of students registered at any" higher education institution. The bill will now go to President Clinton, who is expected to sign this measure, along with the H-1B cap increase bill sent to him last week (see below).
Major Immigration Bill Passes Both Houses of Congress
The House of Representatives passed the Senate version of the Bill 2045. This Bill helps companies retain highly skilled professionals in a tight labor market and helps the individuals who have been in H status for six years but are forced to leave the U.S. because of delays in processing by the INS and/or the U.S. Department of Labor, etc. Because the House and Senate passed the same bill, to avoid having to conference different measures, they introduced last night a separate bill, H.R. 5362, that reflects the consensus achieved with regard to increasing the fee to $1,000. The Bill will now go to President Clinton for his signature. President Clinton is virtually certain to sign the Bill very soon, which will be called the American Competitiveness in the Twenty first Century Act of 2000 ("ACTA"). Major highlights of ACTA are listed below:
H-1B Cap: Increases cap to 195,000 for FY2001, 2002, and 2003
Backlog Clearout: The bill mandates that all H-1B cases approved in 1999 after the cap was reached and before October 1, 1999 are counted against the FY1999 cap, and all cases filed before September 1, 2000 are to be counted against the FY2000 cap, regardless of when they are approved. The caps for those years are raised to accommodate however many visas this would require.
Exemption from the Cap: Exempts individuals employed at higher educational institutions and their related or affiliated nonprofit entities, and individuals employed by nonprofit research organizations or governmental research organizations from being counted toward the H-1B cap. (Exemption from the cap for foreign graduates of U.S. masters or Ph.D. programs is deleted). Also, H-1B physicians who have received a J-1 Conrad 20 waiver of the two-year home residency requirement are exempt from the cap. Anyone exempt from the cap by virtue of their employment with one of the entities described above who subsequently changes employers to one that is not described would be counted toward the cap in the year they change employers.
H-1B Count: Prohibits the INS from counting someone toward the H-1B cap if they have had H-1B status in the previous 6 years, unless the individual would be authorized for a new six-year period of stay at the time the petition is filed.
Per Country Limits: Will allow unused employment-based immigrant visas in a calendar quarter to be allocated in subsequent quarters without regard to per-country limits. Allows an individual who has an I-140 filed on his or her behalf and who would be subject to per-country limits to extend his or her nonimmigrant status until the adjustment of status application is decided.
Portability of H-1B Status: H-1B nonimmigrants may change jobs upon the filing of a new petition by the new employer as long as the individual is in lawful status at the time of filing and has not engaged in any unauthorized employment since his or her last lawful admission.
Portability of I-140s and Labor Certs: Allows individuals who have filed for adjustment of status and whose cases have been pending for 180 days or more to change jobs or employers without affecting the validity of the I-140 or underlying labor certification, as long as the new job is in “the same or a similar occupational classification” to the job in the original petition and labor cert.
Recapture of Unused Employment-based Immigrant Visas: Provides that any employment-based immigrant visas that were available but unused in FY1999 and FY2000 are to be “banked” for use in future fiscal years if the demand for employment-based visas exceeds the overall cap for that year. (This shall take place in addition to any “spill up” of unused visas to the family preferences that would otherwise occur.)
Sixth-Year Extension for H-1Bs Awaiting Green Cards: Provides that H-1B nonimmigrants for whom an I-140 has been filed and whose labor cert or I-140 was filed at least 365 days prior, may obtain extensions of their H-1B status beyond the six-year maximum, in one-year increments, until their adjustment of status or immigrant visa application is decided.
Extension of Attestations and DOL Investigative Authorities Through 2003: Extends the additional attestations and DOL investigative authorities from ACWIA through FY2003
Recovery of Fraudulent Visas: Provides that for any H-1B petition revoked for fraud or willful misrepresentation, the visa number shall be added back to the cap in the year the petition is revoked, regardless of when the visa was actually issued.
Additional Funds to INS for Processing: Increases INS’ portion of the H-1B education and training fee to 4% from the current 1.5%
Education and Training Provisions: Worked out in a compromise between Senators Abraham, Kennedy, Lieberman and others. 55% of the H-1B education and training fees are to go toward DOL demonstration programs and projects to provide technical skills training for workers. Training shall not necessarily be at the level of a baccalaureate degree, but preparation for workers at a broad range along the career ladder. 75% of the grants shall be to workforce investment boards or consortia of such boards in a region, to be decided in consultation with the Dept. of Commerce. 25% of the grants will go to partnerships of at least 2 businesses or a business-related nonprofit organization that represents more than one business, and may include any educational, labor, community organization or workforce investment board. 80% of grants will be for skills training in high technology, information technology, and biotechnology and no more than 20% to training workers for skills in other H-1B-type specialty occupations. 22% of the fees will go toward low-income scholarships instituted in ACWIA (“Abraham scholarships”) 15% of the Fees will go toward NSF competitive grants for K-12 math, technology and science education. 4% of Fees go to the Department of Justice and the INS for H-1B case processing and enforcement of those attestations under their jurisdiction. 4% of fees go to the Department of Labor for enforcement and processing of LCAs.
Studies and Reports: Requires a new NSF study on the divergence of access to high technology (“digital divide”), Dept. of Commerce to conduct a review of existing public and private high-tech workforce training programs in the United States (Kerry amendment).
Kids 2000: Biden amendment from committee that provides after-school technology grants to the Boys and Girls Clubs of America. Up to $20 million may be appropriated for FY2001-2006 to the Attorney General to fund grants under this program, such funds may come from the Violent Crime Control Trust Fund.
Backlog Reduction Provisions: The bill incorporates the text of the Immigration Services and Infrastructure Improvement Act (S. 2586, introduced by Senator Feinstein), which provides for the creation of a new Immigration Services and Infrastructure Improvement Account (and authorizes appropriations to fund this account) in order to reduce INS processing time of all cases to less than 180 days and eliminate the backlog of pending cases. The bill requires INS to provide a backlog elimination plan to Congress within 90 days of the enactment of the bill, and annual reports on their service provision situation and progress toward improvement.
Senate Overwhelmingly Approves Bipartisan Consensus H-1B Bill
By a 96-1 vote, the Senate approved S. 2045, the H-1B measure sponsored by Senators Orrin Hatch (R-UT) and Spencer Abraham (R-MI). This overwhelming vote came after Democratic and Republican Senators agreed on a compromise measure that includes many provisions American Immigration Lawyers Association (AILA) has strongly supported. Please see our update for June, 2000 below for a summary of the provision of the above bill.
Attention next turns to the House. Representative Lamar Smith (R-TX) is urging his colleagues to take up H.R. 4227, his measure which is opposed by more than 400 major corporations, trade associations and advocacy groups (including AILA), rather than S. 2045. It is vitally important that AILA members call their Representatives and urge them to immediately schedule a vote on S. 2045, and do so in a way that will not allow Mr. Smith and his allies to substitute H.R. 4227 in place of S. 2045. The Capitol switchboard is 202-224-3121.
[Note: Please consult with an attorney specializing in Immigration & Nationality law for professional advice in specific situations.]
